Information Note on the Court’s case-law No. 146
November 2011
O.H. v. Germany - 4646/08
Judgment 24.11.2011 [Section V]
Article 46
Article 46-2
Execution of judgment
Individual measures
Measures of a general character
Preventive detention in Germany: no indication of measures in view of adequate implementation at domestic level
Article 5
Article 5-1-e
Persons of unsound mind
Preventive detention in prison of person allegedly of unsound mind: violation
Facts – In 1987 the applicant was convicted of attempted murder and given a nine-year prison sentence followed by preventive detention, which at the time was subject to a statutory maximum period of ten years. However, in 2006, after the applicant had completed his prison sentence and ten years’ preventive detention, the court responsible for the execution of sentences ordered his continued preventive detention under a 1998 legislative amendment on the grounds that he was likely to reoffend. In his application to the European Court the applicant complained that his continued detention was unlawful (Article 5 § 1 of the Convention) and constituted a heavier penalty than that applicable when the offence was committed (Article 7 § 1).
Law – Article 5 § 1: For the reasons stated in M. v. Germany, the preventive detention beyond the maximum period of ten years permitted by law at the time of the applicant’s conviction and sentence was not justified under sub-paragraphs (a) or (c) of Articles 5 § 1.
As to whether it was justified under sub-paragraph (e) as being detention of a person “of unsound mind”, the Court reiterated that, in principle, the detention of a person as a mental-health patient would only be “lawful” for the purposes of this provision if effected in a hospital, clinic or other appropriate institution. At the material time the applicant was detained in a prison wing for persons in preventive detention and the Court was not convinced that he had been offered an appropriate therapeutic environment for a person detained as being of unsound mind. Indeed, the director of psychiatry at the prison had confirmed that the applicant needed treatment in a psychiatric hospital. The fact that the applicant had refused treatment in such an institution did not exempt the domestic authorities from providing an appropriate medical and therapeutic environment. In that connection, the Court endorsed the view that had been expressed by the German Federal Constitutional Court in its leading judgment of 4 May 2011 on the question of preventive detention that persons in preventive detention had to be provided a high level of care by a multi-disciplinary team and individualised therapy if the standard therapies available in the institution were unlikely to work.
Lastly, in response to the Government’s argument that continued preventive detention had been ordered to protect the public from further offences, the Court reiterated that the Convention did not permit a State to protect potential victims from the criminal acts of a person by measures which were itself in breach of that person’s Convention rights.
Conclusion: violation (six votes to one).
Article 7 § 1: As in M. v. Germany the applicant’s preventive detention had, in the absence of any substantial difference with the ordinary prison regime, to be considered a “penalty” and had been extended beyond the initial maximum period of ten years with retrospective effect under a law enacted after the commission of the offence.
Conclusion: violation (unanimously).
Article 46: Following the Court’s judgments in M. v. Germany* and several follow-up cases, the Federal Constitutional Court had held in its judgment of 4 May 2011 that all provisions on the retrospective prolongation of preventive detention were incompatible with the Basic Law. It had further ordered that courts dealing with the execution of sentences had to review without delay the detention of persons – such as the applicant – whose preventive detention had been prolonged retrospectively and to examine whether they were highly likely to commit the most serious crimes of violence or sexual offences and whether they suffered from a mental disorder. As regards the notion of mental disorder, the Federal Constitutional Court had explicitly referred to the Court’s interpretation of the notion of “persons of unsound mind” in Article 5 § 1 (e) of the Convention. Any detainee in the applicant’s position in respect of whom these pre-conditions were not met had to be released by no later than 31 December 2011.
By that judgment the Federal Constitutional Court had implemented the Court’s findings on preventive detention in Germany in the domestic legal order and had assumed full responsibility. By setting a relatively short time-frame for the domestic courts to reconsider the continuing preventive detention of those concerned, it had proposed an adequate solution to put an end to ongoing Convention violations. Accordingly, it was not necessary to indicate any specific or general measures regarding the execution of the judgment in the applicant’s case.
Article 41: EUR 20,000 in respect of non-pecuniary damage.
(See also Schmitz v. Germany, no. 30493/04, 9 June 2011, and Mork v. Germany, nos. 31047/04 and 43386/08, 9 June 2011, both in Information Note no. 142)
* M. v. Germany, no. 19359/04, 17 December 2009, Information Note no. 125.
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This summary by the Registry does not bind the Court.
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